Analysis
The defendant in the present claim had brought a probate action in respect of the will of the deceased; the claimants in the present claim were defendants in the probate action. In the course of the probate action the judge made an order in a preliminary application for the determination of the deceased’s domicile at his death. It had been the present defendant’s position that the deceased had retained his domicile of origin in England and Wales, whereas the present claimants had argued that he had acquired a domicile of choice in Belgium, so that under Belgian law the will was void as a sham and, in consequence:
- a) succession to his English immovables fell to be determined upon the basis of an intestacy;
- b) succession to his movables was governed by Belgian law; and
- c) one of the present claimants, the deceased’s mother, was entitled under Belgian law to one quarter of the estate.
The probate action judge held that the deceased had been domiciled in England and Wales at his death.
In the present claim the claimants sought the rescission of the judgment in the probate action, on the basis that it was procured by the fraudulent evidence given to the court by the defendant. The defendant applied to strike out the claim, alternatively for judgment on the claim, on the basis that it had no realistic prospects of success.
Although the judge in the probate action had considered the case for domicile of choice in Belgium as being a weak one, evidence had since come to light, upon which the Master had no doubt that the claimants had realistic prospects of establishing at a new trial that the evidence given by the defendant in the probate action had been knowingly and materially untrue. The Master considered there were two questions to be considered in the context of the probate action judge’s determination of the question of domicile, and the materials relied upon by him in doing so. As a matter of law, what was the test to be applied in determining whether fraudulent evidence given at the probate action hearing was of such a character as to warrant the setting aside of the judgment; and, as a matter of fact, was there a realistic prospect of that test being made out in the context of the case?
Held:
- 1) The basic rule was that, except for matters that fell within stringent criteria, a judgment was final and should not be disturbed. One of the exceptions was where the judgment was obtained by fraud or perjury. In such cases, “the vital question to be asked [was] whether there [was] a real danger that this [had] influenced the outcome”. If so, a retrial should normally be ordered (dictum of Lord Phillips MR in Hamilton v Al Fayed [2000] EWCA Civ 3012, at para [26], followed).
- 2) The Master considered that, had the probate judge been aware of the material that subsequently became available (and which tended to prove that fraudulent evidence had been given), he would have considered the question of domicile of choice in a very different way, including a re-evaluation of the weight that he gave to the present defendant’s evidence.
- 3) As a result, the Master decided that it was not possible to say that there were no realistic prospects that the new and supressed material might not have changed the outcome of the proceedings before the probate action judge or that there was no real danger that the defendant’s dishonest conduct, if established, had the effect of influencing the outcome of those proceedings.
Application dimsissed.
<![CDATA[ Master Bowles : [1] By a Claim Form, dated 12th July 2017, the three Claimants in these proceedings seek the rescission of a judgment of Charles Hollander QC, sitting as a judge of the Chancery Division, in probate proceedings brought by the current Defendant, Adrian Nicholas Morris (Mr Morris) to prove the will …Continue reading "Davies v Morris [2018] WTLR 405"